Summary
In Ames v. Hehner, 231 Neb. 152, 435 N.W.2d 869 (1989), the defendant surgeon operated on the plaintiff in February 1981 and continued to treat her through December 1982.
Summary of this case from Carruth v. StateOpinion
No. 86-915.
Filed February 17, 1989.
1. Limitations of Actions: Pleadings: Demurrer. A petition alleging a cause of action not commenced within the time prescribed by the appropriate statute of limitations is subject to a demurrer. 2. Limitations of Actions: Pleadings. If a petition alleges a cause of action ostensively barred by the statute of limitations such petition, in order to state a cause of action, must show some excuse tolling the operation and bar of the statute. 3. ___: ___. If a plaintiff fails to allege additional facts to show the tolling of a statute, it has, in effect, failed to allege facts sufficient to constitute a cause of action. 4. Demurrer: Pleadings: Appeal and Error. A demurrer which challenges the sufficiency of the allegations is a general one. In our review of a ruling on a general demurrer, this court is required to accept as true all the facts which are well pled and the proper and reasonable inferences of law and fact which may be drawn therefrom, but not the conclusions of the pleader. 5. Limitations of Actions: Malpractice. If the basis of a malpractice claim is continuing negligent treatment, then the statute of limitations does not commence to run until the treatment ends.
Appeal from the District Court for Madison County: RICHARD P. GARDEN, Judge. Affirmed.
Earl G. Greene III and Edward L. Wintroub, of Wintroub Rinden, for appellant.
William M. Lamson and Thomas D. Wulff, of Kennedy, Holland, DeLacy Svoboda, for appellee.
HASTINGS, C.J., BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.
This is an appeal from the district court for Madison County. Plaintiff-appellant, Elizabeth J. Ames, filed a medical malpractice action against defendant-appellee, Clark F. Hehner, M.D., and Our Lady of Lourdes Hospital on June 11, 1985. Ultimately, the hospital was voluntarily dismissed from the suit by the plaintiff, and the action was continued against Dr. Hehner as the sole defendant. Subsequent to the filing of plaintiff's fourth amended petition, the defendant filed a demurrer which alleged that the petition failed to state a cause of action and that the petition, on its face, revealed that the action was barred by the applicable statute of limitations. The district court sustained the demurrer on the basis that the action was barred by the statute of limitations. Plaintiff-appellant's sole assignment of error alleges that the district court erred in holding that the action was time-barred.
A petition alleging a cause of action not commenced within the time prescribed by the appropriate statute of limitations is subject to a demurrer. S.I.D. No. 145 v. Nye, 216 Neb. 354, 343 N.W.2d 753 (1984). If a petition alleges a cause of action ostensively barred by the statute of limitations, such petition, in order to state a cause of action, must show some excuse tolling the operation and bar of the statute. League v. Vanice, 221 Neb. 34, 374 N.W.2d 849 (1985). If a plaintiff fails to allege additional facts to show the tolling of a statute, it has, in effect, failed to allege facts sufficient to constitute a cause of action. George P. Rose Sodding Grading Co. v. Dennis, 195 Neb. 221, 237 N.W.2d 418 (1976).
A demurrer which challenges the sufficiency of the allegations is a general one. In our review of a ruling on a general demurrer, this court is required to accept as true all the facts which are well pled and the proper and reasonable inferences of law and fact which may be drawn therefrom, but not the conclusions of the pleader. Hebard v. ATT, 228 Neb. 15, 421 N.W.2d 10 (1988).
Given this standard of review, we must accept as true the following facts set forth in the petition. On February 13, 1981, Ames underwent a surgical procedure known as a thoracotomy at Our Lady of Lourdes Hospital. The surgery was performed by the defendant, Dr. Hehner. Following her return to consciousness after surgery, Ames began suffering pain in her right shoulder and arm. The condition grew progressively more painful and disabling, and eventually involved her right hand as well.
Dr. Hehner continued to treat Ames for her "underlying physical condition and the painful and progressively disabling symptomatology of her right shoulder, arm and hand" through December 1982. He repeatedly assured Ames that her condition was not permanent and that it would improve. During the period of time from February 13, 1981, to December 1982, Dr. Hehner referred Ames to other physicians, "who were unable to properly diagnose [her] condition." Ames alleges that she "sought advice and treatment for her condition from several physicians" and that these physicians were unable to diagnose her condition.
It was not until August of 1984 that Ames' condition was diagnosed as "Klumpke's paralysis," a condition of paralysis resulting from "ischemia and nerve pressure caused by improper arm positioning" during her 1981 surgery. At this time, Ames became aware that her condition was not a temporary postoperative condition, but was, in fact, a permanent disability. Ames filed her petition on June 11, 1985.
The statute of limitations for medical malpractice actions is contained in Neb. Rev. Stat. § 25-222 (Reissue 1985), which states as follows:
Any action to recover damages based on alleged professional negligence or upon alleged breach of warranty in rendering or failure to render professional services shall be commenced within two years next after the alleged act or omission in rendering or failure to render professional services providing the basis for such action; Provided, if the cause of action is not discovered and could not be reasonably discovered within such two-year period, then the action may be commenced within one year from the date of such discovery or from the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier; and provided further, that in no event may any action be commenced to recover damages for professional negligence or breach of warranty in rendering or failure to render professional services more than ten years after the date of rendering or failure to render such professional service which provides the basis for the cause of action.
(Emphasis supplied.)
We believe that Ames' petition does state a cause of action that, on the face of the petition, was barred by the 2-year statute of limitations contained in 25-222. The "act or omission" (the surgery) alleged to be negligence took place on February 13, 1981. Ames' petition was filed June 11, 1985, well beyond the 2-year time limit.
However, the additional facts alleged in the petition are adequate to show that Ames did not and could not reasonably have discovered her injury and the cause of action within that 2-year time limit.
During reargument to this court, the appellee made the argument that if we found that the 2-year time limit did not run from the moment Ames woke from surgery and felt pain, which we in fact reject, then the statute commenced running on the last day Dr. Hehner treated Ames in December 1982. If that were true, it is alleged, then Ames "discovered" her injury in August of 1984 and had until December 1984 to file suit, which she did not. We agree.
Appellee's argument relies on the "continuing treatment exception" to the professional negligence statute of limitations as set forth in Williams v. Elias, 140 Neb. 656, 1 N.W.2d 121 (1941). Recently, in Tiwald v. Dewey, 221 Neb. 547, 550-51, 378 N.W.2d 671, 673 (1985), we said:
Williams v. Elias, supra, involved a malpractice suit against a physician who had misdiagnosed the plaintiff patient's injuries and had continued to treat those injuries under the misdiagnosis. We held that "[i]t was not the error in the diagnosis originally made by defendant but its adherence thereto and course of treatment that brought about the injuries." Williams, supra at 662, 1 N.W.2d at 124. We then held that "[t]he treatment and employment should be considered as a whole, and if there occurred therein malpractice, the statute of limitations should begin to run when the treatment ceased." Williams, supra at 663, 1 N.W.2d at 124.
. . . The malpractice in Williams can be characterized as a continuing tort because the physician persisted in continuing and repeating the wrongful treatment because of the incorrect diagnosis. Thus, the statute of limitations did not begin to run until the continuing negligent treatment which was the basis of the plaintiff's claim had ended.
The exception is applicable in this case, since Ames alleges, among other allegations, that Hehner was negligent
[i]n failing to properly advise Plaintiff during the course of her continuing treatment since the surgery of February 13, 1981 and through December, 1982, of the true cause of her injuries and disabilities; the proper diagnosis, and of affirmatively concealing the same; [and in] failing to properly examine, test, diagnose and treat the Plaintiff since the surgery of February 13, 1981 through December, 1982 . . . .
(Emphasis supplied.)
Taking facts pled in the petition in a light most favorable to Ames, the petition alleged adequate facts which excused the operation and the bar of the 2-year statute of limitations. However, we hold the statute commenced running on the last day Dr. Hehner treated Ames in December 1982 and that the statute had run by December 1984, barring her suit.
The district court's decision sustaining defendant's demurrer is affirmed.
AFFIRMED.